More Court Interpretation of Washington’s Lien Removal Statute

Once you miss the deadline, you missed the deadline.

Yesterday, I discussed the Lien Removal Statute through a recently published case. In that case, the court failed to justify use of the removal statute. I was sent another recent appellate case hours after I published and thought I would share with you all.

If you ever wanted to see a spot on use of the Lien Removal Statute – keep reading. Attorney Jordan Foster, of Tacoma’s Smith Alling, contacted me shortly after I published our article on Gray v. Bourgette. Jordan agreed that there is little case law on the interpretation of the Lien Removal Statute, but provided a recently issued, yet unpublished, opinion. Remember, this opinion is unpublished, but it presents the perfect set of facts for proper use of the Lien Removal Statute.

In New Care Construction, LLC v. Mike Harvey’s Plumbing Services, Inc., a plumber (Harvey) was hired to do work on a commercial project out in Walla Walla. Harvey stopped work back in April 2008 and demanded payment. The general, New Care, presented a list of roughly 10 issues and asked that they be resolved prior to payment. Harvey refused and the matter sat in limbo for roughly a year and a half. It was undisputed that the work’s progress ended in April 2008.

In September 2009, Harvey reignited settlement talks. As part of those talks, Harvey contacted a building maintenance manager to make sure they had the plumbing drawings. They then filed a lien in January 2010. After filing, they returned to the building at the urging of the maintenance manager to fix a water temperature problem.

New Care filed a Motion to Show Cause why the lien should not be removed under the Frivolous Lien Statute. The trial court agreed, finding no rationale that would support a contractor showing back up after 22 months to reignite the lien-filing clock.

On appeal, Division III found little to discuss:

MHP argues its lien was timely, so it could not be frivolous. The court reasoned MHP could not create a debatable issue simply by visiting the project site 22 months after ceasing to furnish labor, professional services, materials, or equipment. The court cited to Hopkins v. Smith, 45 Wn.2d 548, 276 P.2d 732 (1954) for the rule that “work must in fact be done as part of the project and not be done gratuitously or as a mere pretext to justify an otherwise late lien filing.” CP at 80. It twice noted that MHP performed this work while aware of the legal issues pending between it and New Care. The court rejected the proposition that the review of the “as-built” diagrams “involved his professional services.” CP at 79. The court found MHP’s contentions meritless.

While this case was a bit of a “no-brainer,” it goes to show just how poorly supported a lien must be to fall victim to the Lien Removal Statute. Certainly, the courts cannot permit a party to unilaterally reboot the lien period by simply “doing work” 22 months after it has abandoned the project. If contractors were permitted to simply pick up the phone and bill the job, the deadline would serve no purpose. Where there is no explicit instruction from the general contractor, a subcontractor will not be entitled to jump back in and file a lien.